DANISH CHOUDHARY Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THE applicant has moved an application of revision against the orders dated 12.8.2011 and 9.9.2011 whereby the applications of the applicant and complainant Babar under Section 311 of the Cr.P.C for re-examination of the complainant were dismissed and application under Section 320(1) of the Cr.P.C was also dismissed.

(2.) THE facts of the case in short are that on 24.10.2009 the complainant Babar informed the Police at the hospital that the accused Danish Choudhary assaulted him by a sword. The Investigation Officer registered a criminal case for offence punishable under Section 307 of I.P.C and a charge sheet was submitted. Case was duly committed to the Sessions Court and ultimately transferred to the trial Court. On 22.11.2010 Mohd. Babar was examined who gave the statement against the applicant by name. The applicant moved an application under Section 311 of the Cr.P.C for re-examination of the complainant to show that the applicant was not the same Danish Choudhary who was examined. Such application was dismissed for the first time on 4.2.2011 and Criminal Revision No.760/2011 was also filed and withdrawn by the applicant. Again on 9.9.2011 the complainant appeared before the trial Court and applied for permission of compromise but since the offence was not compoundable, permission was not granted. In the meantime, the applicant moved an application under Section 311 of Cr.P.C which was dismissed vide order dated 12.8.2011.

(3.) THE learned counsel for the applicant has raised mainly two points that the applicant was not present in the Court when the complainant was examined and therefore, there is a flaw in his identification. He has placed his reliance upon the judgments of the Division Bench of this Court in the case of "State of M.P. Vs. Budhram" (1996 JLJ 80). He has submitted that in absence of the accused an appropriate identification could not be done with the complainant and therefore, he could be recalled. The reliance is placed upon the judgment passed by the single Bench of this Court in the case of "Gurmeet Kaur Vs. State of Madhya Pradesh" [1997 (II) MPJR 218] and the judgment passed by Hon'ble the Apex Court in the case of "Mohanlal Shamji Soni Vs. Union of India and another" [1991 (1) Crimes 818]. Similarly reliance is placed on the order passed by the single Bench of the Kerala High Court in the case of "Valsamma Vs. Satheesh Kumar" (2001 CRI.L.J. 1574) in which a detailed note is given on the basis of the judgment passed by Hon'ble the Apex Court in the case of "Rajendra Prasad Vs. Narcotic Cell" (AIR 1999 SC 2292) and therefore, it is prayed that by previous revision there is no effect to the present revision because the present application was moved on a different set of facts. It is prayed that the complainant be permitted to be re-examined.